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David Hannay, Lord Hannay of Chiswick, speaking to the UK Association of European Lawyers during a webinar on 10 December 2020.

The best laid plans do sometimes go awry.  And so it was with our calculation that today would enable us seriously to review and comment on the outcome of the UK/EU post-Brexit negotiations on their future partnership.  Well that, in the circumstances, not being practicable or sensible I will instead offer a few random reflections on some of the themes which have been under negotiations in recent months and still are as I speak.

First a few words about that rather slippery concept summed up in the word “sovereignty”.  If I had a gold sovereign for every occasion on which a minister or a government spokesperson has used the word since the negotiations for a new partnership began, I would be rich beyond the dreams of avarice.  It tends to be deployed as if it was the ace of trumps, as if playing it simply stops the game and needs no explanation or rational justification.  But the sovereignty argument is not so clear cut as that.  In reality nearly every international agreement this country signs, and there are many hundreds if not thousands of them in existence, constrains our sovereignty and inhibits our right to exercise that sovereignty unilaterally.

That was true of course of our membership of the EU which did not involve, as is often claimed, the loss of our independence as a sovereign state.  How otherwise did we, quite legally, decide to leave?  And how could France, another sovereign state and member of the EU have the right to veto an agreement with the UK?

Here are three other examples, none of which has anything to do with the EU or our relationship with it.  First, NATO, where Article 5 requires us to take action up to and including the use of nuclear weapons in defence of another member subjected to aggression. Second, we accept the compulsory jurisdiction of the UN’s International Court of Justice in The Hague, a court on which we now, regrettably, have no seat.  And thirdly we are subject to the binding rulings of the World Trade Organisation’s dispute settlement procedures, procedures which we have, justifiably in my view, been defending vigorously against the attempts of the Trump administration to dismantle them, and those rulings can authorise penalties to be imposed on our exports.  Those three examples surely demonstrate that sovereignty is no knockdown argument; and that care should be taken in the use or as I would argue the abuse of the sovereignty argument.

And then there is the question of fisheries, which has figured large in these negotiations.  On this both sides, the UK and the EU, have taken an “all or nothing” approach from the outset, which has made the search for compromise solutions far more difficult to achieve.  Again we have been subjected to one of those mantras so dear to our present government, that the UK is an “independent, sovereign coastal state”.  Quite so.  But look back to the early 1960s, when the British government of the day (Harold Macmillan’s) took powers to extend our territorial waters from 6 to 12 miles to provide better protection for the fish stocks in those waters and to limit the right to fish there of foreign fishers.  At the same time the government negotiated an international convention with the countries whose fishers were fishing there (principally from Belgium, France and the Netherlands) to protect what were called their “historic rights” to continue to do so.  So this Convention was negotiated at a time when there was no shadow of doubt that the UK was an “independent, sovereign coastal state” and recognised as such; when there was no Common Fisheries Policy; and when the UK was not a member of the EU.  It was from that London Convention that in 2018 the government unilaterally withdrew before post-Brexit negotiations had even begun.  Hardly, you might think, the most conciliatory way to proceed.

Enough for now of fish.  When the negotiations for a post-Brexit relationship between the UK and the EU began in February of this year it might have been expected that they would be on the basis and within the framework of the Political Declaration agreed between the parties in October 2019.  That was, after all, the purpose of the declaration which had been endorsed in the Conservative Party’s manifesto in December, had been approved by the newly elected Parliament after the election and formed part of the joint decision in Brussels for Britain to leave at the end of January 2020.  But that was not what occurred.  While the EU side drew up a mandate largely based on that Declaration, the UK side threw it overboard, lock, stock and barrel.  That was not illegal in international law, but was it wise? It certainly damaged trust at the beginning of what was always going to be a tricky negotiation and so made that negotiating process more difficult and more protracted.

Then, in June, with the pandemic already wreaking havoc with our economy and that of the rest of Europe, the government declined even to keep open the possibility of extending the transitional period beyond the end of the year.  That might not have been the wisest choice to have made.

And in September the government sought powers from Parliament to override unilaterally the provisions of the Northern Ireland Protocol of the Withdrawal Agreement, a step which the government itself recognised would breach international law.  This unprecedented step brought no benefit of any kind.  It sowed more distrust and irritation in Brussels; it was rejected twice by the House of Lords; and the government has now, thankfully, dropped it.

Just how damaging these three decisions have been time alone will tell. I doubt very much whether history will judge them kindly.

One final word, about Justice and Home Affairs or internal security.  This is a policy area almost always overlooked by commentators.  But it does matter.  Faced with the rising challenge from international crime – terrorism, drugs, cyber, people trafficking and more besides – anything that weakens pan-European cooperation will damage all on both sides of the UK / EU divide.  The fact that our law enforcement agencies make such copious use of the various EU data resources (the Schengen Information System, Prüm, PNR, ÉCRIS) and of the EU’s crime fighting institutions (Europol and Eurojust) does not make us demandeurs. Very frequently we are identifying criminals and returning them to face justice in their own countries.  So it really is important that neither legal nor ideological obstacles prevent us both establishing a solid basis on which to continue to work together.

I fear this must all sound like a litany of woe.  It is certainly not a cheerful scene, even if we were not in the midst of a global pandemic.  But I hope it is also a reminder of how desirable it is that we do not treat the fracture of recent years as somehow irreparable, but work to put more flesh on the bones of a new partnership with the rest of Europe, even whether or not that may be about to be delayed indefinitely.

David Hannay is Chair of the Senior European Experts Group and a former UK Permanent Representation to the European Communities and the United Nations.

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